ADJ-00029932

Worker

Employer

Anonymised Parties

A worker

An Employer

Representatives

Eamonn Donnelly, Fórsa trade union

 Management

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA – 00039694 - 001

09/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA – 00039694 - 002

09/09/2020

The worker has worked as an Environmental Health officer for the employer since July 2002.

This complaint was received by the Workplace Relations Commission on 9th September 2020. 

In complainants submitted under section 13 of the Industrial Relations Act, 1969 the Complainant is referred to as ‘the worker’ and the Respondent is referred to as ‘the employer’.

Introduction 

The worker has worked as an Environmental Health officer since July 2002. 

Throughout this period, she has had an impeccable track record of employment. Quite recently, she was placed on panels for promotional posts. 

The case for Adjudication concerns events leading up to and including an incident at a food premises on 1st October 2019 whereby an external food consultant behaved in a hostile and aggressive manner to the worker.

The case also concerns the 'whitewashing' of the episode within the structures of the employer’s internal grievance procedure, the failure of the employer to provide the necessary employee support and a number of occurrences since the grievance was lodged by the worker which culminated in the worker being absent from work, through work related stress, initially on paid sick leave followed by a period of unpaid sick leave when the paid sick leave allowance had expired. 

Background

The difficulty began following an inspection of a food premises in January 2019 by the worker which was followed by an inspection report and letter sent to the restaurant on 19th February 2019, which, in turn, generated a meeting between the external food safety consultant and senior Environmental Health officials. 

The worker was excluded from this meeting despite the subject matter being an inspection which she had carried out. On 1st October 2019, the worker carried out a follow-up inspection. During this inspection, initially on the telephone and subsequently in person, the worker was aggressively verbally abused and threatened by the food consultant. The consultant, within the discussion, indicated that he had made a complaint about the worker. The worker, despite the hostility and abuse, remained on the premises for the duration of the inspection out of a sense of duty. No support whatsoever was offered to the worker by her employer. The food consultant never received any type of censure, formal or otherwise, for his behaviour. 

ln an attempt to 'cover tracks' staff were advised at a meeting on 9th October 2019 to be aware of health and safety issues and to leave a premises if such volatile behaviour occurred. At that meeting, a colleague of the worker advised of a similar incident whereby, at least, a note had been placed on the file. As a minimum, this should have occurred following the incident involving the worker. ln fact, the worker was advised by management to write to the consultant herself.

The worker had also sought consideration by the employer that the food consultant would be cited for 'obstruction' under the relevant legal proceedings. At the very least, this matter should have been referred to the Law Agents for opinion. 

The matter was processed through the stages of the Grievance Procedure. The structures and application of the Grievance Procedure were adhered to by the employer in terms of process. However, little or no attempt was made to resolve the matter. As is often the case within a Grievance Procedure stage 1 can be directly defensive by nature, as the person often hearing the grievance is the person to whom the grievance pertains.

However, the remaining stages of the grievance procedure proved to be nothing more than reinforcement of the employer's defensive position and crucially, offered little hope of support or resolution to an employee who was clearly under severe stress and distress. 

Furthermore, not only did the grievance procedure offer little hope of resolution, the actions of the employer following the lodging of the grievance led to a position of increased vulnerability of the worker, culminating in a recommendation by the employer’s Occupational Health Physician, that the worker, who was by then absent on unpaid sick leave, should only return to work on the condition that she would no longer report to her line manager, the recipient and part-subject of the original grievance. The actions of the employer involve, inter alia, trivialisation of the worker's concerns, lack of transparency re meetings and inspections, pressure to lift improvement notice and difficult and poor communication.

As a result of all the above, the worker, under severe distress, went out on frequent periods of sick leave (30 weeks in total between October 2019 and September 2121), 9 weeks of this sick leave was unpaid. 

Worker’s arguments. 

The employer has absolutely failed in its duty of care to the worker in providing support and follow-up following an horrific display of aggression towards the worker by an external food business consultant.

The employer met the food business consultant at the exclusion of the worker thus denying access to the basic natural justice principle of being able to present her views.

The grievance procedure proved to be a re-enforcement of the defensive position taken by the employer. Grievance procedures, by definition, do not require a win/lose outcome. They should offer a prospect of resolution and this process certainly did not offer such a prospect. 

The stage 3 verdict that the worker should have left the premises is at worst, hostile, and

at best flippant. The matter of obstruction should, at least, have been presented to the Law Agents for a legal opinion. This would have offered the worker some solace and encouragement. In the case of a fellow employee who reported a similar incident, the employer placed a note on the file in that instance but refused to so do in the incident reported by the worker. The suggestion by the employer, that the worker herself write to the aggressor was both grossly unfair and dismissive The behaviour of the employer, following the lodging of the grievance, contributed largely to a worsening of the worker's working environment. This worsening of the working environment caused absence by way of extended sick leave (partially unpaid) by the worker, as a result of extreme distress. The recommendation from the Occupational Health physician set out a condition that any return to work would require a different reporting structure. 

Conclusion

Taking all the above into account, it is clear that this is a somewhat subjective but entirely complex matter. lt is a fact that the worker was under severe distress. This has been medically confirmed. lt is a fact that the worker suffered financial loss as a result of absence from work attributable to such distress. lt is a fact that the worker now has no sick leave entitlement as a result of the above. The union respectfully seeks all or part of the following remedy:

•         Restoration of elements of sick leave entitlement or adequate compensation in respect

of sick leave entitlement lost

•         Adequate compensation for financial loss incurred as a result of unpaid sick leave

•         An independent investigation into the findings of the grievance processes

The worker submitted a complaint to the Workplace Relations Commission ("WRC") pursuant to section 13 of the Industrial Relations Act, 1969 received by them on the 9th September 2020. Her complaint relates to her dissatisfaction with the outcome of an internal grievance raised in relation to a number of matters. The local process has been exhausted on these issues. The worker alleges that her complaint refers specifically to the failure of her employer to adequately protect her in a named employment scenario. The worker has ticked Bullying and Harassment Procedures in her complaint form to the WRC. 

The employer rejects the claim. The grievance as outlined by the worker was dealt with in accordance with the nationally agreed Grievance Procedure. The fact that the outcome was not to the liking of the worker does not constitute a failure of the employer to protect the worker. The employer absolutely does not accept that any Bullying or Harassment has taken place. The worker or her union have not raised any issues under the Dignity at Work procedure. 

Background. 

The worker is employed as an Environmental Health Officer based in Blanchardstown, Dublin 15.

In October 2019 the worker was jointly carrying out an inspection of a food premises as part of her duties. She was accompanied to the inspection by a colleague who was a Senior Environmental Health Officer. Following the completion of the inspection a Food Safety Consultant (FSC) employed by the Food Business Operator (FBO) behaved in an aggressive manner towards the worker and her senior colleague.

The worker reported the matter to her line manager. It was the worker's view that the incident which occurred was obstruction as outlined in section 50 of the Food Safety Authority of Ireland Document.

Subsequent and separate to this incident a letter was received from the Food Business Operator by the Regional Chief Environmental Health Officer (RCEHO) on the 17th October 2019. The worker alleges that this letter was specifically complaining about her. She alleges that she was not given a chance to respond to this correspondence.

The worker was not satisfied that her employer had supported her sufficiently in its response to the verbal aggression and secondly, not endorsing her subsequent recommendation of the FSC on foot of the incident of October 1st. This formal recommendation for prosecution of the FBO/FSC was made subsequent to the hearing of the workers grievance at all stages. 

5               The worker submitted a grievance under the employer’s grievance procedure on the 9th November 2019. A stage one hearing was heard on the 18th November and a decision was issued to the worker on the 27th November. The worker appealed this decision and a stage two hearing was convened on the 17th December. A stage two decision was issued on the 10th January 2020. The worker appealed this decision on the 14th February. A stage three hearing was held on the 28th February 2020 and a decision was issued on the 11th March 2020. The worker submitted a claim to the WRC on the 9th September 2020. 

The Claim.

The complaint as submitted to the WRC is essentially that the worker is dissatisfied with the outcome of an internal grievance raised in relation to a number of matters. Those matters are distilled to two issues. The worker contends that the incident which occurred on the 1st October 2019 following the inspection of the food premises constituted obstruction of an Environmental Health Officer carrying out their duty. Secondly the worker is of the view that a letter sent by the food company was a complaint against her individually and that she was denied the right of reply. The worker believes that because of the failure of the employer to institute obstruction proceedings against the FSC and the failure of the employer to allow her to answer the alleged complaints against her she has been in some way not supported.

Obstruction of an officer in the course of their duty is dealt with under Section 50 of the Food Safety Authority of Ireland Act 1998. Subsection 8 states that (8) A person who obstructs or interferes with an authorised officer in the exercise of his or her powers under this Act or gives an authorised officer information which the person knows to be false or misleading shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 3 months, or to both. There is also a specific Environmental Health Service Protocol (No. 41) which deals with obstruction of an authorised officer.

The incident that occurred on the 1st October 2019 following on from the inspection of the Food Business Premises was not a pleasant one. However, the worker had finished her inspection and had spoken with the chef in relation to the inspection. The interaction with the Food Safety Consultant (FSC) took place following the end of the inspection. The worker has confirmed that this was the case on a number of occasions and also during her stage three grievance hearing. There was no attempt by the FSC to prevent the worker or her colleague from carrying out any of her statutory duties. Nor was there any allegation that the FSC gave false or misleading information. It was the view of the worker's line manager that given the circumstances there was not enough evidence of obstruction taking place. The inspection had been completed, the outcome communicated to the chef on duty and then the owner, therefore no prosecution for obstruction could be legally instigated.

The process for instigating a prosecution under the relevant legislation is that the Environmental Health Officer involved begins the process by recommending that a prosecutionshouldtakeplace.Thisisthenforwardedtothenextlevelofmanagement who will review the evidence and proceed with theprosecution if there is sufficient evidence available togive areasonable chanceofaconviction.Thedecisiontotake any prosecution bytheEnvironmental HealthServiceisnotonetaken lightly.Inthis instance the worker did not take timely action to instigate a prosecution in the immediate aftermath of the completed joint inspection.Neither did her senior colleaguetakeanyactiontoinstigate theprocess.Itwasnotuntil the16th July2020, eight and a half months later, that such a report was submitted by the worker.

The worker’s linemanager did takeactioninrelation totheinteraction between the FSC and both staff members.

The letter submitted by the Food Business owner and their FSC agent on the 17th October to the Principal Environmental Health Officer raised a number of issues of concern that the Food Business had in relation to its interactions with the Environmental Health Services and the application of law to its operation in the preceding few months. The letter was not a complaint against the worker directly.

The Environmental Health Service interacts with the public and in particular with Food Businesses as part of the service it provides. The interactions are not always positive given that the nature of the work that is done is implementing legislation. While the service endeavours to work with businesses to ensure that proper food safety standards are in place there are occasions when the relationships with food businesses are difficult. The Environmental Health Service must ensure that there is fairness in process in how it responds to the concerns of those it audits as well as ensuring that standards are upheld. The Environmental Health Service proactively invites feedback on its interactions with food business and includes the following lines as standard at the end of all its food correspondence "The employer is continually striving to improve the quality of its service. If you have any feedback on your recent interaction with the Environmental Health Service please contact XX, Principal Environmental Health Officer on XX".)

When a food business communicates its concerns in relation to the interactions with the service there is a process that is followed. This process is followed for all concerns raised by all businesses. A file review may be carried out by a senior member of staff to ensure that the service has complied with its own procedures as well as legal and statutory procedures. This is exactly what happened in this particular case. The food business raised a number of issues. A file review was carried out and the results of this were communicated to the business. The results of the file review were shared with the worker in line with internal procedures. There was no specific complaint against the worker and there was no damage done to her reputation or professional standing.

The worker has been given access to all information shared with the FBO and FSC and has been assured by the most senior management within the Service that her issues have been taken seriously and have been appropriately dealt with. 

The worker had her complaints dealt with under the grievance procedure in a timely manner. There were no delays in hearing the grievance. At all stages of the grievance the worker was accompanied by her union representative. The worker was provided with a decision at all stages of the process and was given access to the highest levels of management. The issues around the FSC were dealt with at senior levels within the Environmental Health Department and the Food Business were left in no doubt that the behaviours that were demonstrated on the 1st October 2019 would not be tolerated. At no stage during the grievance process did the worker produce any evidence of victimisation or bullying by anyone within the Environmental Health Department or the wider organisation. 

Conclusion

The worker was involved in an incident which was not a pleasant one. She was given access to all supports available within the organisation. She was given access and support right to the most senior manager within the Environmental Health Service. The worker had her grievances heard at all stages of the process and was provided with decisions in a timely manner. She was always accompanied  by her union representative. The issue with the FSC was comprehensively dealt with by Environmental Health management. The fact that the worker's grievance was not upheld does not mean that she was not supported. The worker has provided no evidence of bullying or intimidation by any staff member despite the claims in her complaint to the WRC.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties. 

The employer has a formal Dignity at Work policy and it is under this policy that any complaints of bullying and/or harassment are processed.

“Workplace bullying is defined as repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and /or in the course of employment, which could be reasonably regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work, but, as a once off incident, is not considered to be bullying”. (Ref: HSA Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work.) 

In this particular case I’m quite sure that the incident that occurred on the 1st October 2019 following on from the inspection was not  pleasant and did upset the worker. However, as a once off incident, it cannot be elevated to bullying at the hand of the Food Safety Consultant. 

The worker submitted a grievance with her employer on the 9th November 2019. A stage one hearing was heard on the 18th November and a decision was issued to the worker on the 27th November. The worker appealed this decision and a stage two hearing was convened on the 17th December. A stage two decision was issued on the 10th January 2020. The worker appealed this decision on the 14th February. A stage three hearing was held on the 28th February 2020 and a decision was issued on the 11th March 2020. I cannot fault the employer for the expedient manner in which the grievance was processed. The worker then waited for a period of two days short of six months before referring the matter to the Workplace Relations Commission, I find this somewhat strange. 

Reading through documents supplied at the hearing of the complaint I have noted the following:

In the stage 3 Grievance outcome it was clearly stated by the Appeals Officer:

“There is a 1egal process that an Environmental Health Officer should use in cases of obstruction. In the event that an EHO believes that obstruction has occurred they should instigate a prosecution under the relevant legislation. This is then escalated to the line manager for decision. In this case neither the worker nor her colleague, who is a senior EHO, initiated this action. This can only lead me to believe that they did not think that the incident which took place on the 1st October was indeed obstruction”.

As per submission the employer has stated: “The process for instigating a prosecution under the relevant legislation is that the Environmental Health Officer involved begins the process by recommending that a prosecution should take place. This is then forwarded to the next level of management who will review the evidence and proceed with the prosecution if there is sufficient evidence available to give a reasonable chance of a conviction. The decision to take any prosecution by the Environmental Health Service is not one taken lightly. In this instance the worker did not take timely action to instigate a prosecution in the immediate aftermath of the completed joint inspection. Neither did her senior colleague take any action to instigate the process. It was not until the 16th July 2020, eight and a half months later, that such a report was submitted by the worker.  

The Food Business Owner (FBO)was fully informed of the behaviour of the Food Consultant on no fewer than three occasions. He signed a note to that effect. 

Despite what she (the worker) may think it has been stated quite categorically by the employer that there had been no complaint made by the either the Food Consultant or the Food Business Owner against the worker and that any meeting that took place with the Food Business Owner and the Food Safety Consultant related to interpretations of food safety legislation.  

Having considered the complaint in detail I accept that the worker was subjected to a very unpleasant experience that should not have happened. However. I cannot agree that her employer could be held accountable or responsible for what took place on 1st October 2019.

The employer has taken some actions following the incident and have conducted themselves in accordance with the organisation’s grievance procedure following on from the worker submitting a grievance.

The employer has provided all available supports to the worker following the incident. 

Industrial Relations Act, 1969.